중국 계열사의 실질적 합병-파산 적용기준에 관한 고찰

Establishing adjudication standards as threshold requirements for applying substantive consolidation in affiliated enterprise bankruptcy proceedings can prevent procedural abuse and protect creditors' interests. However, China's Company Law and Enterprise Bankruptcy Law lack provisions on substantive consolidation, while the judicial interpretation Bankruptcy Work Conference Minutes holds low legal authority and contains overly vague stipulations. This results in: (i) excessively broad criteria for determining substantive consolidation, (ii) unclear sequencing and normative implications of the three prescribed standards, and (iii) absence of creditor protection mechanisms. When evaluating whether to implement substantive consolidation for affiliated enterprises, courts must adhere to the principle of prudential restraint to prevent abusive applications that harm creditors. The primary standard should be high-degree commingling of corporate personalities, supplemented by auxiliary criteria including: (a) prohibitive costs of separating member entities' assets, and (b) substantial prejudice to creditor interests - with substantive meanings of each criterion clarified through systematic interpretation. To safeguard creditor rights, the following institutional safeguards are essential: Mandatory creditor participation in hearings as a precondition for substantive consolidation orders; Enhanced objection rights for creditors during procedural reviews; Compensation mechanisms for creditors suffering disproportionate harm.